# Petitioners Brief — Monroe v. Board of Commissioners of Jackson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0181%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1968 - **Citation:** 391 U.S. 450 ## Text “SUIBREME COURT. U. & D . : In THE ; FEB 15 196§ : Supreme Court of the United Prwtes pve _ OcrosEr TERM, 1967 No. 740 = ~~ . Brenpa K. Monrog, e¢ al., : = ‘a - * Petitioners, —Vv.—’ e- % Boarp oF ComMISSIONERS OF THE Crty | OF Jackson, ee et al. ON WRIT OF CERTIORARI TO THE, UNITED STATES — COURT OF APPEALS FOR THE srtTH CIRCUIT _ BRIEF FOR PETITIONERS. JACK GREENBERG ‘ James M. Nasrit, III MicHart MELTSNER © _ Micnart J. Henry 10 Columbus Circle New York, New York 10019 Avon N. Wits, Jr. 1 Z. ALExanper Loopy McClellan-Lopby Building Charlotte at Fourth — Nashville, Tennessee 37201 “* ; _J. Emmett: Bauuarp > N 116 West Lafayette Street F _ Jackson, ‘Tennessee \__ = (8th Cir. No.*19, 107, Jan. 9%, 1968) ...... vinlinbils ; a | 29 Louisiana v. United States, 380 U. s. 145 (1965) siete eines 27 Moses v. Washington Parish School mann (La.), E.D. La., Civil No. 15973, October 19, 1967 cocoons 29 Plessy v, Ferguéon, 163 U.S. 587 (1896) -sc.u!ocm 24 Reynolds. Sims, 407 US. 608 (1906) oe Rogers v. Paul, 382 U.S. 198 (1965) .....ccegovsesneenne 17 ‘4 oo rage ‘Schine “Chain Theatres v. United: States, 334 U.S. 110 (1948) . ; \? ‘United States v: Jefferson County Board of Education, 372 F.2d 847 (5th Cir. 1966), affirmed en banc, 380 F.2d 385 (5th Cir. 1967), cert. den. 389 U.S. 840 ....18, 21, 22, 23, 24,29 United States v. Standard Oil Co., 221 U. S. 1 (1910) ... 27 ‘Wheeler v. Durham City Board of Education, 346 F. 2a ik, eG. ocaskeene eee 32 Statutes: | MPT Oe SS. 98 U.S.C. §1254(1) cece pe a bea a eecns ne 42 U.S.C. §1983 ........ ee eee iden seca aabedees 2 x _ Other Authorities’: “Racial Isolation in the Public Schools,” Report of the United States ceemcummenes on Civil Rights (1967), Vol. I. sclkal nsanssateaueiandciionpibachianieameaeiaiaiasbaiie 29 State of Tennessee, Department of Education, Equal _Educational Opportunities Program, Fall 1966 De- segregation Report on Tennessee’s Public Elemen-* tary and Secondary Schools (compiled from reports - to the U. S. Office of Education) 2.0.00... 17 ° Ly THE Supreme Court of the United States Ocroser TERM, 1967 No. 740 ~~ Brenpa K. Monroz, et.al., Petitioners, i —VvV.— aad » Boarp oF CoMMISSIONERS OF THE Crry or JacKsoNn, TENNESSEE, et al. . ) ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR |THE SIXTH CIRCUIT BRIEF FOR PETITIONERS Citations to Opinions Below i The district court’s opinion is reportéd at: 244 F. Supp. 353, and is printed in the Appendix at pp. 365-389. ‘The opinion of the Court of Appeals is reported. at 380 F.2d 955 and is printed in the Appendix at pp. 397-409. An earlier. district court opinion in this case is reported at 221 F. Supp. 968, and is printed in the Appendix at p. 33. e * Jurisdiction The judgment of the Court of Appeals was entered July 21, 1967., The petition for writ of certiorari was filed Octo- ber 19, 1967, and was granted January. 15, 1968. The juris- diction of this Court is invoked under 28 U. Ss. C. Section 1254(1).— P 4 , Question Presented Whether the courts below erred by approving a school desegregation plan which failed to make reasagnable pro- - visions to abolish the dual school system, and by using a standard for judging the plan which failed to recognize the affirmative duty of the school board to disestablish the segregated school i Constitutional and Statutory Provisions Involved This case involves Section 1 of the Fourteenth Amend- ment to the Constitution of the United Statés, and 42 U.S.C. § 1983 providing a right of relief in ‘equity for violations _ of constitutional rights. r @ Statement of the Case s This is a school segregation case ‘involving the public - schools of the City of Jackson, Tennessee. 1 Jackson is a small to medium-sized city .in midwestern Tennessee, with a school system of almost 8,000 students, about 60% white and 40% Negro.? As early as 1956, leaders of the Jackson Negro community began petitioning. the Board of Com-_ missioners to desegregate the-schools in compliance with this" Court’s decision in the School Segregation Cases 1 An action seeking desegregation of the adjoining Madison’ County, Tennessee school system is not involved in this petition. The county and city school systems were sued in the same complaint, but the county and city cases were severed and tried separately by the trial court. An appeal involving the county schools was argued and decided in the Court of Appeals with this’ City - but no petition for certiorari was filed in the County case. — ; 2 In 1964-65, there were. 3,194 Negroes and 4,610 ) white pupils in the system (Plaintiffs’ Exhibit 26, A. 359). ¢ -. iealiais v. Board of Education, 347 U. Ss. 483, 349 U.S. 294) © (A. 357-358). They met with failure until the 1961-62 school year when the board admitted three Negro students to a white school (A. 24). The following year’ (1962-63), four more Negro students were admitted ‘to a white school (A. 24). Except for these 7 students, the 13 schools in the system remained totally My pegragated in their student bodies | and faculties. In the elementary grades 1-6, there were five white schools (Highland Park, Alexander, Whitehall, Parkview and West Jackson) and three Negro schools (Lincoln, South Jackson, Washington-Douglas). The jun- ior high, school a (7-9) were served by two white schools (Tigrett Jr. High, Jackson Jr. High) and one Negro school (Merry Jr. High). Grades 10-12 were served by a white schopl (Jackson Senior High) and a Negro © school (Merry Senior High—located in the same building with Merry Jr. High). Petitioners, who are Negro. pupils weit peein in the. Jackson public school system, brought this action January 8, 1963, in the District Court for the Western District of Tennessee. Their-complaint alleged that the Jackson Board of Commissioners operated a compulsory racially segre- gated school system with a gual system of white and Negro . schools, and that the individual plaintiffs had been dis- _criminatorily denied admission in white schools in violation of their Fourteenth Amendment rights (A. 3). Petitioners sought injunctive relief to enable the named ‘plaintiffs to attend specified white schools. In addition, they prayed for’ an order for a Acemplete plan for the prompt and speedy eas entire systems of public — schools . .~ into unitary, nonracial systems of schools . . . lincbading) a plan for the assignment, education and treat- we) ment of students or enrollees on a nonracial basis, the as- signment and treatment of teachers,. principals; . .-. on a / 4 - nonracial basis, ana the sUmination of all and any other discriminations in said systems - . . which are based. on race or color” (A. 22): The district court promptly, on ~ January 25, 1963, granted a preliminary injunction requir- ing the admission of the four plaintiffs to previously white _ schools. The Board of Commissioners, by answer, . denied that the school system was ‘segregated. and asserted that seven Negroes had been admitted to formerly all white schools ‘under Tennessee’s Pupil Placement Act (A. 23, 24). However, the answer admitted that the Pupil Placement Act was “not adequate as a plan for reorganizing the (City) schools into a nonracial system” (A.°25). June 19, 1963, District Judge Brown: granted plaintiffs’ motion for summary judgment and ordered the board. to file a desegregation plan (A. 27). The board filed a pro- posed plan July 19, 1963 (A. 29), and after an evidentiary hearing the plan was approved with modifications in August 1963. (See 221 F. Supp. 968 ;*A. 33-50.) - The desegregation plan (A. 29) as modified by the August 20, 1963, judgment - of the district court (A.42), provided for the elimifiation of , compulsory segregation rules in five stages with all grades to ke affected by the 1967-68 school year. As vari- ous school grades were desegregated, the plan provided for the school officials to designate geographical attendance areas to be served by each school. Pupils residing within these areas had the righi to attend the schools in their ~ zones (A. 30). Pupils already in schools were permitted to remain where they were until graduation notwithstand- ing the new zones. Additionally, the school superintendent | was granted the power to “grant or require” transfers of pupils to schools: other than the school'in their zones on application or on his own initiative (A. 31-32). The court also approved—over petitioners’ objections of gerryman- dering—the board’s school attendance zones for elegrentary / aor / / ° / . SEI SORAEI TE TRS PTET as schools. The court held that the board “should have: ad- ministrative discretion in establishing unitary zones, pro- vided that the zones do not clearly thwart the plan to bring. - about abolition of discrimination” (A. 39), and ‘that the zones proposed “do not constitute. an abuse of this discre- tion” (A. 40). The court directed (in accord with the plan — of gradual desegregation) that zone fnaps for junior high »Schools and senior high schools be filed in 1965 and 1966, respectively. In an addendum to the opinion (responding * to a new trial motion), the court reiterated its view that the zones were not gerrymandered (A. 46).- . ‘After the desegregation plan had been in effect two. _ years, the five Negro schools remained all-Negro as before; 120 Negroes attended formerly white schools. The enroll- ments by race for the 1964-65 term were: Bldg. Negro re 1 Elementary Schools Capacity Pupils . Pupils © ' Total Liteon; 875 709 0 709 ¢ South Jackson * 525 589: 0 589 Washington-Douglas 525 434 0 434 Highland Park 700 —2C—té«‘ 0 590 590 Parkview * 750 : 654 655 Whitehall 315 -. 16 308 324 West Jackson - 500 14. 453 467 Alexander 750 87 628 715 Junior High Schools , - Merry Jr. High 700 (+120)4 752 0 . 752 _ Tigrett Jr. High 725. . 0 699 699 ~ Jackson Jr. High * 650 © 1 431 432 High Schools . Merry Senior High — - 690 0.- + oO . ' Jackson Senior High —__—_=—-- _- 2 847 848 - pe ae ; 3194 4,610 7,804 3 These enrollment figures are from Plaintiffs’ Exhibit 26 (A. ronene $s building capacity figures are from A. 81-89, 143. *The board decided in the Spring of 1965 to construct 4 new rooms to accommodate 120 more pupils -at — cae ears Se 6 4 ‘In September 1964, when the plan was beginning its second year of operation, the Negro plaintiffs filed a Motion for Further Relief and to Add Parties in which they at- tacked the administration of the plan’s transfer provisions as racially discriminatory and again charged that the at- tendance zones were gerrymandered (A. 51). Twenty-seven . Negro children who complained that they had been denied transfer to white schools were permitted to intervene as’ plaintiffs, and the court ruled that plaintiffs eould reopen -the gerrymandering issue, as well as a faculty desegre- gation prayer which had previously been deferred (Pre- trial order of 9/28/64; A. 92). The board filed a map (reproduced at A. 105) proposing zones for the three junior _ high schools and requested the court’s approval (A. 104- 105). Plaintiffs objected that the zone lines were drawn . to perpetuate racial segregation and asked that the board be ordered to present new zones (A. 106). By a further ‘motion’ plaintiffs sought the desegregation of all remaining _ grades in September 1965, and the,elimination of discrimi- nation in teacher in- service training programs and extra- curricular activities (A. 109). The district court heard, evidence on these matters on May 28 and June 18, 1965 (A. 126-358). The’ Superintendent of Schools, Mr. C. J. Huckaba, testified that the elementary and junior high school zones were prepared by considering such factors as the location ° of the schools, the size of the buildings, the location of the. childref™and an effort to fit the number of .students to the capacity of the schools (A. 132). The petitioners pre- sented two experts in the field of education who testified that the elementary and junior high school zones proposed by the board were racially gerrymandered to achieve a high degree of racial segregation. Petitioner? experts were _ Dr. Roger W. -Bardwell, then Superintendent of Schools Nine a ‘ 4 ——Ee ee . ee et See ee 7 of Elk Grove Township, Illinois, and Mr. Merle G. Her- man, then Assistant Superintendent of. Schools in Villa. - Park, Illinois.’ Dr. Bardwell and Mr. Herma conducted a study (Plaintiffs’ Exhibit No. 12) which’ was “designed to discover if the school zone lines . . . have been so drawn to obstruct the racial integration of the city’s: schools” and also to answer “whether the free transfer policy as admin- istered has fostered additional segregation in the schools” (Exhibit 12, Introduction).; The experts prepared.a series of exhibits, consisting of plastic’ overlay maps which may be viewed in booklet form or projected on a screen by an overhead projector (Plaintiffs’ Exhibits 12-21). The ex- - hibits locate all pupils attending the schools by race on maps showing the schools and zone lines. The procedure used -in preparing the exhibits was‘a standard - method which Dr. Bardwell said he used in presenting similar data to his own Boatd of Education (A,)213).. Dr. Bardwell and ~ : Mr. Herman reached the follawing “conclusion” in their study (Exhibit 12): , . 10 the school system had discovered from the. 1964-65 enroll- ment figures that all-Negro Merry Junior High Schodl, which, then accommodated all but one of the Negro junior high school students in the city, was over capacity, the Board of Commissioners decided in the«spring of 1965 to ‘construct four additional classrooms at Merry so as to increase its capacity by 120 (A. 143, 184). This decision was made despite the facts that (1) the enrollments of | the two previously all-white junior high schools were ap- | proximately 300 students under capacity, and (2) the ele- mentary school enrollment figures indicated that total junior high enrollment for the system would remain con- stant at about 100 students above the present enrollment for at least the neat four years (A. 143, 259-260): When asked whether based on his experience no white children could be expected to enroll in Merry Junior High ~ ‘School and would it not therefore remain all-Negro, the Superintendent of Schools said, “Judging on the basis of what has happened up to now, that might be the case. . . . I imagine it will be predominantly Negro” (A. 185-186). He also expected that the small number of Negro students from the other two zones of the heretofore all-white junior high schools would continue coming to Merry, something the board’s transfer policy would encourage (A. 186). The superintendent attempted to justify th nstruction of an addition to Merry Junior High by pointing out that all-Negro Merry Senior High.School (in the same build- ing), was growing and might need some of the rooms pres- - éntly used by the junior high school. But he also admitted f. that the all-white senior high school (not yet then deseg- - regated) was 249 students. under capacity (A. 186). With respect to the elementary: schools, Dr. Bardwell testified that his analysis showed that “if geography were the main criterion for the zoning of the schools, why most on ll all of the schools would be integrated with the exception of Highland Park, and Lincoln would be predominantly = ‘ ‘ : ’ ‘. . peals. See e.g. United States v. Jefferson County Board of Education, supra, 372 F.2d at 846, 861-873 ; 380 F.2d at 389 ; Kemp v. Beasley, -— F.24 ——N 8th Cir. No. 19,107," Jan. 9, 1968) ; Kélley v. The Altheimer, Arkansas, Public School District No. 22, 378 F.2d 483, 488 (8th Cir. 1967). The holdingseby the trial court reject the idea of an affirmative obligation by the school board to abolish the dual system in several ways. The court used its conclu- beg sion that the Constitution did not require “integration” - to justify its disregard*of the careful study made by peti- tioners’ expert witnesses who testified that the Jackson school -zones were racially gerrymandered. Their presen- - tation was disregarded because. the. Court thought their _ testimony assumed the desirability of “integration”. Simi- larly, the court, took the view that school board discretion in establishing attendance zones “should not be overridden unless it constitutes a clear abuse of this discretion” (A. 46): The Court thus limited its inquiry abont the zones to a séarch for an abuse of discretion without any ex- | pressed indication of concern for the practical impact of the proposed zones on the separation of ‘the races in the school system. Uncontradicted evidence that the zone lines “maximized the raeial separation was disregarded. The trial court’s standard for appraising the desegrega- tion plan was seriously in grror in that it failed to it nize that a prime objective of the desegregation plan must be to accomplish the actual desegregation of the schools and the elimination of the dual system.’ The trial court’s view focused entirely on whether the desegregation plan used non-racial and non-discriminatory mechanisms for. assigning pupils and disregarded thp practical impact of these rules on the pre-existing dual-system. A -principal feature of the dual system is the existence of a number of all-Negro schools. Obviously abolition of the dual- Sys- . 24 tem of Separate white and. Negro schools should include desegregation of both sets of schools and the elimination © of racially identifiable schools. But the Court approved a plan which was manifestly designed to preserve the all- Negro schools intact; and rejected petitioners’ experts’ proposal to desegregate all junior high schools by a feeder system, saying that their plan was intended to “integrate” | the schools. « The Court of Appeals also” characterized petitioners’ arguments as a demand for “compulsory integration”. The Court said it was unfair and impermissible to impose a — duty -on the Jackson school board which had established segregation under the aegis of Plessy v. Ferguson, 163. U.S. 537 (1896), that was not imposed on a school board that had no history of compulsory segregation. By so defining the problem the Sixth Circuit also refused to follow the legal rule stated in United States v. Jefferson ‘County Board of Education, supra, that there is an affirm- -ative duty placed on school boards to devise plans to abol- ish the dual system. The Court of Appeals —_ the trial. judge’s opin- ion which itssaid “concludes that the Fourteenth Amend- ment did not command compulsory integration of all of the schools regardless of an honestly composed unitary neighborhood system and a freedom of choice plan” (A. 399). We think this formulation mistakes the crucial is- _ gues. The vital inquiry in appraising a plan intended to implement the Brown decision is not merely whether school . attendance zones are. demonstrably dishonest. The central inquiry ought to-be whether the zones are reasonably de- signed to abolish the segregated system. If the Board’s duty is to “devote every effort,toward initiating desegre- gation” (Cooper v. Aaron, supra, 358 U.S. at 7), surely this duty must include something beyond merely refrain- yas i> R 7 ee Sea a) 2 . ‘ ing from drawing dishonest, plainly arbitrary, ‘Or segre- gationist zones. There is a duty to make a reasonable effert to actually desegregate those schogls which the state previously established ‘and maintained for one race only. Pupil transfer rules adopted as part of-a desegregation plan should also be required to meet a similar test. In . this case the trial court ruled that transfer applications - must be -granted to all without discrimination and en- joined the board’s former practices which it said. were racially discriminatory. -The court lef¢ it open to the Jack- son system to continue a transfer. arrangement by which. every white pupil zoned into a Negro school area trans- ferred out of his zone to a white school and thus perpetu- ated the all-Negro schools. Experience showed that every white child who was zoned into a N egro school had sought and been granted a transfer to a white school. Everyone —all the parties and the courts below—fully understood and expected that this pattern, which has held true through- out the south; would continue and that the all-Negro schools would remain all-N egro notwithstandimg the fact that. white pupils did live in the zones designated for these schools. It was error, we submit, for the courts be- low to approve a transfer , arrangement which was thus manifestly designed and expected to defeat the objective of eliminating the dual system. es The appropriate standard for appraising desegregation | plans is illuminated by Board of Education of Oklahoma » City Public Schools v. Dowell et al., 375 F.2d 158 (10th Cir., 1967), cert. den. 387 U.S. 931, affirming Dowell et al. " v. Schaol Board of Oklahoma City Public Schools, 219 F. Supp. 427 (W.D. Okla. 1963) and 244 F. Supp. 971 (W.D. Okla. 1965). The Court of Appeals for the Tenth Circuit was confronted: with a school system which had announced | a formal desegregation plan by ‘unitary zoning in 1955.”. ———— eee : Pte 26 Nevertheless, the unitary zoning plan had preserved 4 number of all-Negro schools because’of racially designed building locations,.racial residential segregation, and a racial. “minority to majority” transfer plan. At the time of the fal district «court decision in 1965, 80% of the. Negra’ students in the, system were still attending schools which were all-Negro or ‘at least. 95%: Negro. ’ The Oklahoma district ‘court, after sedate s a study by a panel of independent educational administrators, reqhired the school system to take specific and affirmative. actions recommended by the panel to begin the process of disestab- lishing segregation, including: (1) a consolidation of the attendance districts and changes.in the grade structures of two pairs of nearby six-year secondary schools so as to completely integrate the four schools, and (2) adoption of , @ transfer plan by which any student who was in the racial __majority in any school inthe system could transfer as a matter of right to any. other school in which he would be .in the racial minority. .The Tenth Circuit held that “under the factual situation here we have no hesitancy in sustain- ing the trial court’s authority to compel the board to take specific action in compliance with the decree of the court so long as such compelled action can be said to be neces- - '. gary for the elimination of- the unconstitutional. evils ~——pointed out in the court’s decree.” 375 F.2d at 166. ’ Judge Lewis, concurring, explained the Court’s view that since compulsion was used to maintain the system of seg- ‘regation, the compulsion. inherent in school assignment policies could properly be used to disestablish segregation : I have no quarrel with the statement that forced im tegration when viewed as an end in itself is not a compulsion of the Fourteenth Amendment. But any . _elaimed right to disassociation. in the public schools P a 27 saat "iy must fail and fall. I, lesegregation of the races:is to. be accomplished in the public schools, forced associa- ' tion must result, not as the end sought but as the path . to elimination of discrimination, And, to me, the argu- . “ ment that racial discrimination cannot be eliminated ‘ through factors of judicial consideration that are based “upon race itself is completely self-denying. The ‘prob- ‘lem arose through consideration of race; it may now . be approached through similar but enlightened consjd- eration. 375 F.2d at 169. coe? In the second. Brown decision, 349 U.S, 294 (1955), this Court directed thy} ‘in fashioning and effectuating the decrees [ requiring desegregation], the courts will be guided by equitable principles.” 349 U.S. at 300. The general equity principle is that there is ite wrong without a remedy, illegal-monopolization. United States v. Standard Oil Co., 221 U.S. 1 (1910) ; Schine Chain Theatres v. United States, . 334 US. 110 ( 1948). Similarly, it has been held to require | that federal courts supervise the redrawing of state legis- — districts when there is no other way to.counteract the'effects of population disparities in ‘existing state legis.. lative districts. Reynolds v. Sims, 377 U.S. 533 (1964). ‘ ‘| ; 2 ‘ . ° \ raf € 28 As indicated above, decisions of the Courts of Appeals. for the Fifth, Eighth, and Tenth Circuits have held that thie equitable doctrine, as applied to the problem of remedy for the unconstitutional creation and operation of a segre- gated publi¢ school system, requires a school board to undertake affirmative action purposed to disestablish segre- gation completely, and that the standard for. determining the completion of desegregation is that the formerly Negro schools. must cease being identifiable ‘as Negro’ schools. The creation and operation of separate schools for Negroes was the condemned action, and the. test of the propriety of remedial action to be required by a court is thus whether it will disestablish the existence of the Negro sancti i.e. integrate Negro students. | This Court suggested in the second, evan decision the scope of school system policies: which would have to be changed in order to disestablish segregation, when it said that “to effectuate this interest may call for elimination of a variety of” obstacles,” and directed: the district courts supervising the re-organization of. dual school systems to “consider problems related to administration, arising from. the physical condition of the school plant, the school trans-’ portation system, personnel, revision of school districts, and attendance. areas into compact units to achieve a system of determining admission to the public schools on a non- racial basis,/ ang revision of léca). laws and regulations which may be necessary in solving the foregoing problems. = 349. US: ‘at 300-301. , Since this Court’s announcément of the second Brown decision’ in 1955, the lower federal courts have considered and ordered a variety of specific remedies which constitute affirmative actions and policies purposed te eee > 29 CC; segregation.” See, e.g., United States v. Jefferson County, Board of Education, supra; Kelley v. Alt emer, supra; © Dowell vy. School Board of Oklahoma City\supra; Carr v. Montgomery County Board of Education (Ala. ), 253 F. Supp. 306 @LD. Ala. 1966); Moses v. Washingion Parish School Board (La.), E.D. La., Civil No. 15973, October 19, 1967; Coppedge v. Franklin County Board of ° Hducation (N. Car.), 273 F. Supp. 289 (E.D.N.C. 1967) _ appeal pending ; Corbin v. County School.Board of Loudoun. . County (Va.), ED. Va., Civil No. 2737, ‘August 27, 1967;. Braxton v. Board of Public Instruction of Duval County (Fla. ),, M.D. Fla., Civil No. 4598, January 24, 1967. © With regard to the “revision of school districts and at- ° tendance areas,” ordered by Brown II the Court of Ap- peals for the Fifth Circuit held in Jefferson County, supra: If school officials in any district should find that their’ district still has ségregated faculties and &chools or only token en mee affirmative dufy to take corrective action requires them to try an alternative a freedom of choice plan, such as a geographic at-— - tendance plan, a combination of the two, the Princeton plan, or some other acceptable substitute, ‘perhaps _ aided by an educational park. 372 Fd at 895-896. - _ The Court-thus made it clear that the school board’s as- -signment. transfer, building utilization, new construction. . and other policies must be specifically designed to integrate - the system and etasante. identifiable Negro schools. z 12,A survey of various types of-remedies fdr the disestablishment of segrepation is contained in f on Civil Rights, “Racial Isolation in tke Public Schools,” (1967 ), Vi pp. 140-183. This Survey was commended to the-s ‘distriet court by the Court of Appeals for the Eig Beasley II, No. 19;017, January 9, 1968, slip op 30 | The Court of Appeals for the Eighth Circuit’ adopted Sau similar provisions in its decree in Kelley v. Altheimer, supra. The Desegregation Plan Approved by the Lower Courts Is Inadequate in That Petitioners Demonstrated . That the Zoning and Transfer Arrangements Were. Not — Designed to Abolish the Dual System. The school deneutegation plan proposed. by the Sesticiin, --Tennessee beard, including particularly the junior high _ school zoning arrangements and the transfer. plan, fail tg meet a minimum standard of adequacy under Brown v. Board of Education, 349 U.S. 294. The Jackson plan should not have been approved because there was no. reasonable likelihood that the plan could effectively abol- ish,the dual system of schools. . . , Petitioners’ evidence ‘showed without dispute. that the junior high school zones proposed for the system were drawn so as to preserve racially segregated junior high schools to'a large degree. They proposed a plan which \would have desegregated all three junior high schools. - There was no evidence which contradicted or impaired the value of plaintiffs’ exhibit No. 20 (the same map as Ex- hibit V within the booklet marked overall Exhibit No. 12). This map depicts all of the Negro and white. pupils of junior high school age in the city by race (Negroes in blue, whites in red dots) and shows how they are distributed . in the city.’ The ‘overlay containing the junior high school . _ zone lines. shows plainly how a strangely shaped zone for _ the all-Negro Merry school has been designed by the school authorities to include most of the Negroes in The city and exclude most of the whites. The racial effect of the junior high school zones is readily apparent from an examina- tion of PlaintiffsExhibit 20. 31 At the same time the school board proposed the junior high school zones it took stgps to enlarge-the all-Negro Merry Junior: High School. This enlargement was plainly designed to accommodate all of the Negroes in. the city | at Merry, since Jackson Jr. High School had capacity for | me better than 200 more students than were enrolled there, ‘ and there was also excess capacity at Tigrett Junior High. The racial purpose of this construction is further shown by the fact that the board’s projections indicated no expected large increase in the number of junior high school students . in the next four years. 4 ). °° The location of the three junior high schools (all of ‘which were opened in the years after Brown on a segre- gated basis), the enlargement of Merry. Junior "High to accommodate continued segregation, and the planning of school zones separating white and Negro populations, all make an unrebutted shawing of school building and school zone planning to perpetuate segregation. The board’s free ‘transfer device operates to permit an even greater degree of segregation than could be accom- _. plished by the school zones. Plaintiffs’ Exhibit 19 (the " Same maps as Exhibit VI within the booklet Exhibit 12) ‘denionstrates how the use. of the combination of gerry- is mandered zoning and an open transfer. plan at the junior high level permits a high degree of segregation. The exhibit indicates on map overlays the location of the resi- dences. of pupils attending the three junior high schools. (Note that the exhibits were prepared based on data in December 1964 when the Junior High Schools were still- segregated by compulsion. The respondents arguments ‘that these exhibits are somehow based Ay an effort to prove “de facto” segregation are thus enti specious.) Exhibit 19 shows how relatively few childref/had to be transferred ‘out of their zones to maintain high degree of racial oe separation. As we have discussed above, all of the ex- _perience in Jackson, at the time this. plan was proposed showed that white pupils would transfer out of the all Negro schools if free transfers were permitted, thus leav- _ing the all-Negro schodl intact as a segregated school. ‘The district court.found that there was gerrymangering with respect to the zone lines of several elementary schools ‘proposed by the respondent board. The court ordered that _ these zones be modified because of this apparent gerry- -mandering. Given this finding that the respondent board had once engaged in preparing school zone lines to. per- petuate segregation, it was incumbent upon the district court to scrutinize the newly proposed junior high school zones all the more carefully. We submit that the trial judge, having once found that the board was guilty of gerrymandering with respect to certain proposed zones, erred in failing to consider the irregularly shaped zones proposed by the board for junior high schools to be greatly suspect. It is submitted that the evidence plainly showed the manipulation of school location, - construction, and zoning policies to maintain a high degree of segregation.” This was-sutficient to require disapproval of the board’s proposed plan and for the trial court to have ordered the adoption of the proposed feeder plan suggested: by plain- tiffs’ experts ag a method of actually desegregating -all three junior high schools within the framework of the existing building locations, and grade structures, and build- f 13 The availability of a transfer option, however “free”, does not justify the continued practice of school assignments based on racially gerrymandeied zone lines. See Wheeler v. Durham City. Board of Ed- ucation, 346 F.2d 768 (4th Cir. 1965) (Students assigned by racially gerrymandered zones, then granted right to er out. Held: “Chan- < neling pupils into schools by-a method involving discriminatory practices and then requiring them, or even permitting them, fo extricate them- | selves froni situations thus illegally created, will not be approved.” 346 F.2d oa 178). * 33 ing capacities. If this feeder proposal was .not adopted, at the least-the court should have required some alternative method of assignment to be proposed by the board which _ Was equally as likely as the. feeder method to actually disestablish an dual system of junior high schools. We urge that the evidence on this record is fully sufficient to justify this Court in ruling that the plan approved below was plainly inadequate under Brown. However, assuming arguendo that the record is nof sufficient to support a ruling - rejecting the plan as completely inadequate then the cause should be returned to the’ District Court for reappraisal - in view of the proper standards for review of desegrega- tion plans : as discussed in part I of the argument, supra.’ ‘The trial court’s view of the evidence, the alternative pro- prosals made by petitioners’ experts, and the entire gerry- mandering and transfer plan issues was influenced by the court’s too restricted view of the constitutional require- ment of desegregation. me: . pe ry CONCLUSION , ‘It is semen submitted that the judgment of the court below should be reversed. Respectfully submitted, Jack QREENBERG ~ James’ M. Nasrrt, IIT MicHarL MELTSNER Micuart J. Henry ' 10 Columbus Circle New York, New York 10019 Avon N. Wiriniams, JR. Z. ALEXANDER Loosy McClellan-Looby Building Charlotte at Fourth Nashville, Tennessee- 37201 ~ J. Exmetr Bannarp ~ 116 West Lafayette Street ' Jackson, Tennessee £ 2 Attorneys for Petitioners as - Geraup A. SMITH Frankurx E. Waitt ‘ Of Counsel te - ¢ Oe hone gmammne ep ae ati | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0181%3A05. Public record. Not legal advice.